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The Pennsylvania Supreme Court has recently handed down a ruling in the matter of Pennsylvania v. Tex Xavier Ortiz, 45 WAP 2017, that addresses and clarifies whether the criminal offense of interference with the custody of children, committed by a biological parent, can serve as an underlying felony for the crime of kidnapping a minor.

In a related custody matter to Ortiz, the maternal grandmother of the father’s (Ortiz) daughter, was awarded primary custody of his daughter as Ortiz failed to appear at the custody hearing. Per the order granting her primary custody, the grandmother attempted to exercise her custodial rights over the daughter, but could not locate her. After an investigation, it was found that Ortiz had his daughter and made efforts to conceal his whereabouts. The daughter was eventually found and returned to the grandmother, and Ortiz was arrested.

Ortiz was charged and convicted of interference with the custody of children (ICC) (pursuant to 18 Pa.C.S. Section 2904(a) and (c)) as well as kidnapping a minor (pursuant to 18 Pa.C.S. Section 2901(a.1)(2)). Ortiz appealed and argued that the ICC cannot serve as an underlying felony for the kidnapping of a minor when committed by a biological parent. Pennsylvania Superior Court agreed with him, and the commonwealth was granted an allowance of appeal to the Pennsylvania Supreme Court.

The court first observed that the kidnapping-of-a-minor statute has two required elements: the unlawful removal of a child a substantial distance away without the consent of the person responsible for the supervision of the child, and one of the four enumerated states of intent as described in Section 2901(a.1)(1) – (4) (i.e: (1) to hold for ransom or reward, or as a shield or hostage; to facilitate commission of any felony or flight thereafter; to inflict bodily injury on or to terrorize the victim or another; and, to interfere with the performance by public officials of any governmental or political function.). Next, the court discussed the ICC, which prohibits “the taking of a minor ‘from the custody of its parent, guardian or other lawful custodian, when the actor has no privilege to do so.’” The two statutes clearly closely track one another and significantly overlap.

The court then turned its focus on Section 2901(a.1)(2) where kidnapping of a minor requires an intention to commit a felony or flee with the child and looked at how that related to the ICC. The court observed that applying the ICC to Section 2901(a.1)(2) resulted in unworkable circular logic. Specifically, the court opined that “it is logically problematic to assert that father unlawfully removed the child pursuant to the kidnapping statute with the intent to make it easier to unlawfully remove the child as contemplated by the ICC statute … stated otherwise, the act of taking does not, sensibly, facilitate the act of taking.”

To discern a proper understanding of how to interpret these statutes together, the court looked to the Model Penal Code, from which both statutes at issue herein are derived. Pursuant the commentary to the Model Penal Code, kidnapping protects against physical danger, while the ICC serves only to maintain parental custody of children against unlawful interference, which does not necessarily touch upon any of the four statutory states of intent in the kidnapping statute listed above. Furthermore, someone who commits kidnapping typically has malevolent intent toward the child, while, by contrast, violating the ICC, although unlawful, is committed by someone who typically is favorably disposed to the child. The ICC, therefore, operates as a lesser included offense to kidnapping to allow for punishment of the act of unlawfully taking a child contrary to a custody order, which is less severe than standard kidnapping in that it does not meet the states of intent mentioned above.

Based on the above, the court ruled that a conviction under the ICC cannot form the underlying felony for a kidnapping charge under Section 2901(a.1)(2). The court found that the authors of the Model Penal Code “having assiduously explained that kidnapping requires more than interference with the custody of a child by a parent—did not intend for such interference to be reintroduced into the calculus under the rubric of a predicate felony.”

Finally, the court rejected the commonwealth’s argument that a defendant may be prosecuted under all available provisions under 42 Pa.C.S. Section 9303 because the kidnapping statute and the ICC do not cover the same underlying conduct.

In sum, a finding that a biological parent committed the crime of interfering with a custody order under 18 Pa.C.S. Section 2904(a) and (c) cannot also serve as an underlying felony for a charge and conviction for kidnapping a minor.

Originally published in The Legal Intelligencer on December 20, 2018 and can be found here.

The stakes in a dependency matter are extremely high. Indeed, one’s parental rights over his child could be forever terminated in such a matter, so it is imperative that the parties involved receive sufficient notification of the hearings which take place and are given a full opportunity to participate. The trial court, in In the Interest of K.S., a Minor, Appeal of: A.L.W., 2017 WL 1162449, has made it clear that proper notice and participation of the parties is absolutely essential in a dependency case.

In K.S., the child-at-issue (“Child”) was placed into a series of homes due to mistreatment and/or an inability of the Child’s parents to care for the Child. Due to the instability of the Child’s housing, Children and Youth Services (“CYS”) eventually filed a Shelter Care Application requesting temporary placement of the Child into the custody of CYS. A hearing was scheduled for the Shelter Care Application, however the Child’s mother (hereinafter “Mother”) and father were both incarcerated at the time of that hearing.

The attorney for Mother appeared at the hearing and requested a continuance of the same because, while Mother wanted to attend the hearing, she was unable to do so due to her incarceration and, perhaps more importantly, the prison in which she was incarcerated refused to allow her to participate at the hearing by telephone. CYS opposed the continuance request on the basis that Mother, regardless of whether she could participate at the hearing, could not receive custody of the Child due to her incarceration. In other words, as placement was the subject of the hearing, and Mother could not receive placement, her participation would not result in her receiving placement regardless of whether she appears and/or participates.

The trial court agreed with CYS and denied the continuance. CYS then proceeded to request an Adjudicatory Hearing, with Mother’s attorney objecting again due to her unavailability. The trial court overruled Mother’s attorney’s objection and granted CYS’s request to adjudicate the Child dependent.

The trial court, at the conclusion of the hearing, adopted CYS’s recommendations, issued a Shelter Care Order, granted CYS custody of the Child, and issued a Dependency Order. Mother subsequently filed a timely notice of appeal of the above-described court orders. Mother raised two issues on appeal: (1) she believed the trial court erred in denying her ability to participate in the above-described hearing; and (2) she believed the trial court erred in determining that the best interests of the Child would be served by denying her due process. Mother pointed out that there were no exigent circumstances which required an immediate adjudication of the case before affording her opportunity to participate.

On appeal, Mother argued that the clear operation of the relevant procedural rules regarding notice and service were violated which justifies vacating the trial court’s adoption of CYS’s recommendation. In making her argument, pointed out three procedural rules. First, Mother argued that there was a lack of compliance with Pennsylvania Rules of Juvenile Court Procedure Rule 1331. Rule 1331(A) states that “[u]pon the filing of a petition, a copy of the petition shall be served promptly upon the child, the child’s guardian, the child’s attorney, the guardian’s attorney, the attorney for the county agency, and the county agency.” Furthermore, even if the parent is not a child’s guardian, she still must receive service of a Dependency Petition. Second, Mother points to a failure to abide by Pa.R.J.C.P. 1361 which requires the following: “[t]he court shall give notice of the adjudicatory hearing to…(4) the parents….” Third, Mother also argues that the requirement of the terms of Pa.R.J.C.P. 1360(A), namely, “[t]he court shall issue a summons compelling all parties to appear for the adjudicatory hearing” was not complied with by the trial court. Rule 1360 goes on to say: “[t]he summons shall: (1) be in writing; (2) set forth the date, time, and place of the adjudicatory hearing; (3) instruct the child and the guardian about their rights to counsel, and if the child’s guardian is without financial resources or otherwise unable to employ counsel, the right to assigned counsel; (4) give a warning stating that the failure to appear for the hearing may result in arrest; and (5) include a copy of the petition unless the petition has been previously served.” Fourth, pursuant to Pa.R.J.C.P. 1406(A)(1)(a), the trial court was to specifically ascertain whether the notice requirements of Pa.R.J.C.P. 1360 and 1361 were met (the Rule specifically states “(1) Notification. Prior to commencing the proceedings, the court shall ascertain: (a) whether notice requirements pursuant to Rules 1360 and 1361 have been met….”

Upon the Superior Court’s review of the underlying matter, it observed that the trial court failed to comply with the Rules noted above. First, the Dependency Petition in this case was filed the same day as the Shelter Hearing and appears in the record after the entry of the Shelter Care Order. Obviously Mother could not have received service of the Petition per Rule 1331. Second, due to the timing of the Petition, as compared to the applicable Shelter Care Order, Mother simply could not have received service per Rule 1331. Third, the notice of the Adjudicatory Hearing was, strangely, entered on the same day as the hearing itself, and therefore obviously could not have provided Mother notice per Rule 1361. Fourth, while there appears to have been a summons issued per Rule 1360, no affidavit of service was filed for the same pursuant to Pa.R.J.C.P. 1363. As a result, there is nothing in the record suggesting Mother was properly served with the summons. Furthermore, nothing in the record reflects any reasonable efforts to notify Mother of the above were made (see Rule 1363(E)). To that end, Superior Court observed that due to the prison’s inability to provide Mother with the opportunity to telephonically appear at the hearing, she could not have been provided notice during the hearing itself. Finally, the trial court never even took the opportunity to ascertain if the service requirements of Rules 1360 and 1361 were met before moving forward with the Adjudicatory Hearing.

Based on the above, the Superior Court held that the trial court abused its discretion by holding an Adjudicatory Hearing without ensuring strict compliance with the service rules noted above. Consequently, the Superior Court vacated the trial court’s order and remanded the case for a new hearing ensuring Mother can participate. Ultimately, for practitioners, this decision makes it abundantly clear that the service requirements noted above will be strictly enforced requiring that ensuring compliance is paramount.

Originally published in The Legal Intelligencer on July 11, 2017 and can be found here and republished in the Pennsylvania Family Lawyer in its October 2017 issue and can be found here.

As I have posted recently (see here), I had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here). The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics. I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Listed below is the complete list of the materials I wrote for my portions which can be read here on this blog.

As I have posted recently (see here), I had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here). The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics. I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Ethics.”

Thanks!

__________

Client/Lawyer Relationship

The client/lawyer relationship in a family case is unlike that relationship in any other case. A family law case involves extremely intimate and visceral issues affecting intensely personal aspects of one’s life. A family case looks at one’s sex life, home life, relationship with a significant other, children, and finances; there are few things more personal than these. When a client seeks out an attorney to help him through these issues, that attorney should be cognizant that the client is coming to him for more than just a mere legal problem, but a problem affecting his every day personal life. As a result, the attorney’s role with his family law client is often more than just as a legal advisor, but also something of a counselor as well.

There are factors other than legal maneuvers and/or dollars and cents that go into the issues which the attorney and client need to address in a family case. Like all legal issues, a family client should have a sober view of the costs and benefits of the litigation at hand, but, due to the intensely personal issues involved, there is more than just costs to consider. For example, a family client embroiled in a divorce may be fighting for a family heirloom which, for that client, is of priceless value. Other times, the emotionality in the case is so high that the client may be willing to spare no costs to have his revenge against his spouse. Still other times, clients may pursue the custody of their children without any sense of the costs involved and/or approach issues through emotion rather than rationality (e.g.: being unwilling to accept that his spouse is in a new relationship).

Suffice it to say, it is imperative for an attorney involved in a family case to take the time to think beyond mere legal considerations and delve into the emotional and personal issues which form the underpinning of those legal issues. A client often has emotional attachment to his house, or his personal property, and, most especially, family heirlooms. The attorney should help the client walk through his emotions to discern whether it is worthwhile investing a lot of time and/or money into those items. Other times, a client may be pursuing a course of action that has revenge as its primary motivation, as opposed to a legitimate legal or personal reason; here, again, the attorney’s role is to help direct the client’s efforts to more productive ends.

Custody cases are cases which especially need an attorney’s sober input into an emotionally charged situation. Understandably, clients become extremely emotional when dealing with the custody of their children. Sometimes clients simply cannot accept that the other parent has entered into a new relationship. Other times, a client has a hard time dealing with the fact that the other parent makes different decisions than he would have. Of course, still other times, unfortunately, a client may not objectively be a responsible or good parent. It takes an attorney, who is dispassionate from the case, to help the client look at the matter rationally and from a more objective point of view. The focus of a child custody matter is the child, and what is in his best interests, and sometimes those best interests are not served by one’s own client. It often takes more than mere legal analysis to help a client recognize what is best for his children.

Custody is also unique inasmuch as the case can continue for many years, has to account for all the various chances and vagaries of life, and its effects can last long after the case concludes. A child will take with him for the rest of his life how his parents interacted with him and with one another. Furthermore, in most cases, a child will maintain relationships with both of his parents during the case, and long after the case concludes, which means that they (the two parents) will have to deal with one another indefinitely. So, it is important for an attorney to sit down with his client and talk about the emotional and interpersonal implications of custody that are not necessarily legal issues.

Attendance at Client Conferences by Friends or Family of Client

The Rules of Professional Conduct apply to family cases just as much as they do to other sorts of cases; therefore, Pa.R.P.C. 1.6 applies. Pursuant to Rule 1.6 a client is entitled to lawyer/client confidentiality. Given this, then, it is important to be cognizant and vigilant as to who is permitted into a conference with the client.

As with any case, certain factors need to be considered before allowing a third party into a client conference: (1) does the client give permission to have the third party in the room?; (2) will the client provide compromising information that could be drawn from the third party at a hearing (and unprotected by lawyer/client confidentiality); and, (3) could the third party be an adverse party?

As a threshold matter, the client must grant permission for anyone to be present at any conference. The presence of a third party serves as a waiver of confidentiality, and, generally speaking, only the client can waive lawyer/client confidentiality/privilege. The other factors listed above are tactical in nature. Once the confidentiality/privilege is waived, the third party could be called as a witness and examined at a hearing as to what the client said in what was believed to be a private meeting. Obviously, this could serve to severely handicap a case if certain issues come to light that otherwise could have remained in confidence. Finally, it is not uncommon for a third party – such as a grandparent – to seek custody of a child. The client and his parents may be allies when a case begins, but life is unpredictable and the relationship between a client and his parents could deteriorate, leading to the grandparents seeking custody themselves. As a result, an adverse party has had direct and intimate access to confidential lawyer/client communication and information which could be used against the client.

Finally, a person who finds himself in a custody case is often in a compromised position in his life. In other words, sometimes a person who is very young and/or financially insecure and/or still living with his parents and/or frightened or scared or at a loss as to what to do, has a child. Such a person reaches out to the people in his life, say his own parents or his new girlfriend or wife, or what-have-you, for advice, counsel, and/or moral support. While this is perfectly natural and in most situations a good thing, it is important to be attentive to undue influence over the client from these third parties. It is getting increasingly common in our post-modern culture for grandparents to have a significant role in the raising of grandchildren. An attorney has to ensure that the goals being sought, and the arguments being made, and the tactics employed are the ones the client wants (with the attorney’s guidance and advice of course), and not the goals, arguments, and tactics the third party wants. Obviously, a client will be influenced by all of the voices in his life, but the attorney must ensure, as best he can, that the decisions made by the client are his own and not merely those he is pressured into by third parties.

Attorneys’ Fees

An attorney has an obligation to ensure he clearly expresses his fee structure and billing to his client. This clarity includes the amount of the fee, whether the fee is flat or hourly (and, if hourly, how that is calculated), expressing the billing rate, and for what he is using the fee.

The main distinctive in family law, as compared to other areas of the law, is that a family law attorney may not enter into a contingency fee arrangement with a client where payment is contingent upon securing a divorce or upon the amount of alimony or support received by the client. Obviously there are no contingency in custody matters either.

Of course, when pursuing payment of one’s attorney’s fees by the opposing party, one must ensure one’s billing is clear, reasonable, and accurate.

Communication With Adverse Party

Communication with an adverse party, if represented, is like any other sort of case. Communication ought to be timely, civil, and professional. When discussing the case with the adverse party, it behooves the attorney to keep in mind that he does not have personal knowledge of the underlying issues and to do his best not to get embroiled in the emotionality of the underlying issues. While strong advocacy is always key to an attorney’s representation of a client, keeping one’s mind open is beneficial, especially in cases involving children where their best interests are being sought (as opposed to one’s client’s best interests). As mentioned above, emotionality is high in family court cases, and an attorney ought not contribute to it, but, rather, should serve to help temper it.

Communication with an unrepresented party presents a couple of variables that would not necessarily be present with a represented party. It is important for an attorney not to misrepresent the law, bully, or otherwise misuse his influence or position when communicating with an adverse party. A way to ensure as much transparency as possible is to keep communications with unrepresented parties in writing and stored in the client’s file, regardless of whether that is electronic communication, facsimile, or traditional letters. It is worth noting that the negative feelings an adverse party has toward one’s client are, more often than not, easily transferred to the attorney representing that client. So, as a result, the aggressive stance and perhaps unkind (if not directly insulting) words which could be directed towards one’s client will frequently be directed toward that client’s attorney. The attorney must do his best not to get caught up in the moment and respond personally in the face of such treatment. Keep in mind that the adverse party is usually just as emotionally invested in the case as one’s own client and one should not take the negative treatment one receives personally but, rather, understand it to be the expression of a frustrated and angry individual who has dispute with one’s client. Keeping a level head, calm voice, and focusing on the issues, will help turn away the wrath of an adverse party, and help foster an environment where resolution can be achieved.

Finally, in the context of divorce, there is a notice period which can be waived provided the appropriate document is prepared and executed. As an unrepresented party is typically at a disadvantage against an attorney, it is best, in order to avoid as much ambiguity as possible, simply not to have the unrepresented party execute the waiver, to ensure he is given as much leeway as reasonably possible.

Malpractice Concerns

Ethics complaints/grievances are heard by the Pennsylvania Disciplinary Board. All lawyers admitted to practice in the Commonwealth of Pennsylvania must comply with the Pennsylvania Rules of Professional Conduct. The Disciplinary Board serves to ensure lawyers remain compliant with the Rules.

When a client believes an attorney has violated the Rules of Professional Conduct, he has the right to bring a complaint with the Disciplinary Board. Once the complaint is filed, the Disciplinary Counsel takes the lead and determines whether that complaint will lead to discipline. As a result, a complainant (i.e.: the client) is merely a witness to the disciplinary complaint while the Disciplinary Counsel takes the lead.

The Counsel, if it determines that an attorney my be subject to discipline, conducts an investigation. This investigation includes affording the allegedly unethical attorney an opportunity to respond to the allegations made against him.

In order for an attorney to be found to have committed misconduct, the opposing party must prove the alleged misconduct with clear and convincing evidence.

The potential discipline an attorney could receive is either private or public. Private discipline typically does not require a hearing as it is generally reserved for minor violations that will not lead to disbarment. A minor violation is usually a matter which is a first offense and/or something that can be easily corrected and/or the result of merely poor habits or case management. A private discipline – which is not publically available – includes things like private reprimands and informal admonitions.

A serious violation, which could result in discipline like disbarment, suspension, or censure, is considered public discipline. Public discipline is typically imposed after a hearing. Public discipline can only be imposed by the Supreme Court of Pennsylvania. If an attorney is disbarred, the attorney cannot practice law at all in any way. A disbarred attorney may seek reinstatement after five years, but only if the attorney can show that he can meet the moral qualifications, and his resumption of the practice of law will not diminish the integrity of the bar. Disbarment is completely public except in situations when the attorney elects to resign from the bar, in which case the record upon which the disbarment is based is confidential. Another public discipline is suspension. While suspended, an attorney cannot practice law. Suspension can be as long as five years in length, but if it reaches five years in length, the same standards to resume practice as disbarment apply. Finally, an attorney may be publicly censured.

The time an ethics complaint can take may be relatively short, but could also last approximately one year in length.

As a complainant is not a party to the ethics matter, he has no right to appeal an adverse decision. Instead, the Counsel allows for an internal review process which can be requested by a Complainant. If the Counsel rules in favor of the attorney, that attorney cannot bring suit against the Complainant as any communications and/or testimony are absolutely privileged and the person who provided the communication and testimony is immune from civil suit.

It is important to note than an ethics proceeding is not a substitute for legal malpractice law suit.

As I have posted recently (see here), I had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here). The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics. I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “UCCJEA: Uniform Child Custody and Enforcement Act.”

Thanks!

__________

Parents and children are more mobile than ever. It is not uncommon for parents and children to live and move to various states over the course of the life of a custody order. The Uniform Child Custody Jurisdiction and Enforcement Act (23 Pa.C.S.A. §5401 et seq.) was adopted as a way to address and deal with the various pitfalls can afflict a custody case. The UCCJEA is now the law in 49 states, Washington D.C., and various territories (Massachusetts is the only hold out).

The UCCJEA is divided into four basic parts. The first part consists of the general provisions (e.g.: definitions). The second part deals with jurisdiction. Part three regards enforcing out-of-state custody orders. Finally, the fourth part contains miscellaneous provisions.

The purpose of UCCJEA is, in large part, to determine the proper forum for almost any custody matter between two states (or, even, a state and another country) and to ensure only one state can actually have jurisdiction.

Jurisdiction attaches to the state that is determined to be the “home state” of the child(ren) at issue. The “home state” is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the case (if the child is less than six months old, then the state the child has lived in since birth). If the child has not lived in a state for six months, then the home state will be the state which has “significant connections” with the child and at least one parent or, absent that, “substantial evidence concerning the child’s care, protection, training, and personal relationships.” Mere physical presence, however, is not required or sufficient to make a custody determination. Standard notice requirements apply to cases under UCCJEA. If there is another action already pending in another jurisdiction when the Pennsylvania action is initiated, then Pennsylvania may not exercise jurisdiction over the matter unless the other action is terminated or stayed. A basic principle one can take from the UCCJEA is that a non-“home state” must defer to a “home state.”

Of course, if more than one state has significant connections and substantial evidence, then the courts in the two potential state jurisdictions are to communicate with one another to determine which state has the most significant connections to the child. When the courts interact with one another, the parties have a right to submit arguments and facts to the courts regarding their preference of jurisdiction and, at the courts’ discretion, the parties may also participate in their communication. A record of this communication, regardless of the participation of the parties, must be created and kept. As part of the cooperation between the two states, a Pennsylvania court is empowered to request assistance from another state to hold hearings, order the production of evidence, order an evaluation, copies of transcripts, and/or the appearance of a party.

A Pennsylvania court may decline to exercise jurisdiction if it is determined that it is an inconvenient forum. In order to determine whether it is an inconvenient forum, the court must first consider whether a court from another state would be more appropriate according to the following factors (as quoted from 23 Pa.C.S.A. §5427(b):

(1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(2) the length of time the child has resided outside this Commonwealth;

(3) the distance between the court in this Commonwealth and the court in the state that would assume jurisdiction;

(4) the relative financial circumstances of the parties;

(5) any agreement of the parties as to which state should assume jurisdiction;

(6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(8) the familiarity of the court of each state with the facts and issues in the pending litigation.

If it is found that jurisdiction was assumed by Pennsylvania due to the unjustifiable conduct of a party, then the court has authority to revoke jurisdiction and assess the party which engaged in unjustifiable conduct, expenses, costs, attorneys’ fees, and the like.

Once jurisdiction is established, that state has exclusive and continuing jurisdiction until circumstances change. The first way circumstances change is if (1) the child and a parent no longer have significant connection with the state and evidence to make a custody determination is not available in that state or (2) a state court determines that neither the child nor either parent reside in the state any longer.

An example of #1 could be as follows: the parents and children live in Pennsylvania for a period in excess of six months. Unfortunately, the parents divorce and a custody order is entered in Pennsylvania. Eventually the mother and children move to Delaware. The father remains in Pennsylvania. The children maintain a significant connection with Pennsylvania through regular and frequent visits with father there. At some point, father seeks to modify the custody order and files a petition to modify in the same jurisdiction as the original order (i.e.: Pennsylvania). In response, the mother attempts to transfer jurisdiction of the case to Delaware. The UCCJEA, which is designed in part to prevent forum shopping, would serve to prevent the transfer sought by mother by its protection of an issuing court’s jurisdiction unless no parent resides in that state.

An example of #2 could be as follows: the parents and children live in Pennsylvania for a period in excess of six months. Unfortunately, the parents’ divorce and a custody order is entered in Pennsylvania. Eventually the mother and children move to Delaware while the father moves to New Jersey. As no parent lives in Pennsylvania, it no longer has exclusive or continuing jurisdiction to modify its own custody order. Instead, the state where the children reside with at least one parent would likely have jurisdiction.

Once a custody order is entered pursuant to the UCCJEA, a Pennsylvania court is empowered to enforce it and the UCCJEA provides procedures to register a foreign order in Pennsylvania (see 23 Pa.C.S.A. §5445 et seq) . Of course, the other party has a right to contest the validity of the order that someone tries to register in Pennsylvania, and has twenty days to file a petition contesting after being served notice. Once registered in Pennsylvania, the courts of Pennsylvania can enforce it as they enforce any other custody order. The UCCJEA allows for expedited enforcement of a custody determination (23 Pa.C.S.A. §5448) upon petition by one of the parties. The petition requires representations as to jurisdiction. A hearing is ordered as soon as possible (“the next judicial day after service of the order unless that date is impossible.”) A successful petition may result in attorneys’ fees, expenses, and costs to be assessed the opposing party. Finally, pursuant to 23 Pa.C.S.A. §5451, a party may petition for the issuance of a warrant to take custody if there is immediate danger to the child or immediate risk of removal to another jurisdiction. If granted, such a petition empowers law enforcement authorities to seize the child for the petitioner from the other party. The process to secure a warrant also carries with it the potential for an order of attorneys’ fees, expenses, and costs to be assessed the opposing party.

Of course, a state which does not have jurisdiction may enter a temporary emergency order if the child is in danger and needs immediate protection. Pennsylvania can invoke emergency jurisdiction if a child has been abandoned or needs immediate protection (or the sibling or a parent of the child needs protection). Once the emergency order is entered, the court determines if there is an existing order from another state and, if so, the emergency order must allow time for the parties to return to the state with jurisdiction. The emergency order will remain in effect unless and until the “home state” enters a custody order. If there is already an order in another jurisdiction, or a custody action already started in another jurisdiction, then an emergency order in Pennsylvania must provide the parties a period of time to secure an order from this other state else the emergency order remains in effect. Upon being informed of the other state’s potential jurisdiction over the emergent matter, the Pennsylvania court must communicate with the court of the other potential jurisdiction.

Pursuant to 23 Pa.C.S. Section 5324, grandparents and great-grandparents, if they meet the statutory criteria, may be awarded legal and physical custody of their grandchild(ren) (or great-grandchildren). Typically, grandparents assert their potential custodial rights in opposition to the rights of the parents of the children. In some situations, however, more than one set of grandparents may seek to exercise their custodial rights at the same time. How is that conflict resolved? The recent Pennsylvania Superior Court case of G.A.P. v. J.M.W. v. S.J. and R.J., 2018 Pa.Super. 229 sheds some light on how such a matter could be handled.

In G.A.P., the father of the child has a history of substance abuse and also a criminal history, and was alleged to have committed sexual abuse against the child. Similarly, the mother of the child also has a history of substance abuse. The child has lived, from time to time, with the maternal great-grandparents over the course of his entire life, and has lived continuously with them since 2015.

In the summer of 2016 the great-grandparents filed for custody of the child on the basis that he had been living with them continuously since October 2015 and asserted that he was unsafe when in the custody of the father. The trial court, on an emergency basis, awarded the great-grandparents sole physical custody of the child and suspended the father’s partial physical custody, and an agreement was reached with the mother awarding her supervised physical custody of the child. At the end of 2016 the trial court awarded the great-grandparents and the father shared legal custody, the great-grandparents primary physical custody, and the father supervised physical custody. The mother was not awarded anything as she failed to appear for the hearing.

In the spring of 2017 the great-grandparents filed a petition for special relief requesting the father be drug tested and have his custody modified to supervised visits only, on the basis that he allegedly had relapsed into drug use. As a result, the trial court suspended the father’s unsupervised partial physical custody and replaced it with supervised physical custody.

Not long after the father’s custody was reduced, the paternal grandparents filed a petition to Intervene and requested physical custody of the child. The grandparents asserted that their petition was filed pursuant to 23 Pa.C.S.A. Section 5324(3)(iii)(B) which permits grandparents to file for custody of their grandchildren if “the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity.”

In response, the great-grandparents filed preliminary objections against the grandparents’ petition to Intervene, asserting that the grandparents did not have standing as, allegedly, the child was not “currently” at substantial risk. The trial court agreed and dismissed the grandparents’ petition to Intervene for lack of standing, leading them to file an appeal to Pennsylvania Superior Court.

During the litigation of the petition to Intervene, the great-grandparents conceded that the grandparents had a relationship with the child that began with the consent of a parent, and were willing to assume parental responsibility over the child. In other words, the great-grandparents admitted that the grandparents essentially met the other requirements of Section 5324 except, in their view, the requirement that the child be currently substantially at risk.

The grandparents argued that the risk to the child, by the plain language of the statute cited above, is due to “parental abuse” specifically and, therefore, the claim that the great-grandparents are not a source of risk is irrelevant. Furthermore, the “grandparents also argued that the purpose of the statute is to grant grandparents standing in custody matters, not ‘to create a situation where grandparents are essentially in a race to file to receive standing’ because the grandparent who files first is the only one able to obtain standing in a custody matter.”

The Superior Court agreed that Section 5324 confers standing upon grandparents when the child is substantially at risk “due to parental abuse, neglect, drug or alcohol abuse or incapacity.” In its view, these words are clear and unambiguous and make no exception for a child’s potential custodial situation at a given time. In the court’s words “the plain language of the statute confers standing to grandparents when a child is substantially at risk due to ongoing parental behaviors.”

Upon review of the trial court record, Superior Court noted that the conditions required by Section 5325—including the risk factors—were present to grant the great-grandparents standing. Superior Court determined that there was nothing to suggest that the risk created by the parents had changed or somehow subsided. Significantly, the court observed, as the parental rights of father and mother have not been terminated or relinquished, either or both father and mother could seek (additional) custody of the child at any time. As a result, the ongoing risk from the parents is still ongoing.

Finally, it is in Superior Court’s opinion that the General Assembly did not intend, by its adoption of the specific language in the statute, to create a so-called race-to-the-courthouse standard by which the (great) grandparent who files first gets awarded custody at the expense of the others. Instead, the Superior Court reasoned, the court should have the opportunity to consider all possible or viable options in order to decide how to allot custodial rights according to the best interests of the child at issue. As a result, Superior Court reversed the trial court’s sustaining of the great-grandparents’ preliminary objections and remanded the case back to the trial court.

This case should provide practitioners the justification, and potential custodial grandparents hope, that they can pursue potential custodial rights over their grandchildren even if others who are in a similar state of life or situation (e.g., another set of grandparents) seemingly have done so already.

Originally published in The Legal Intelligencer on October 2, 2018 and can be found here and republished in the December 2018 Pennsylvania Family Lawyer and can be seen here.

As I have posted recently (see here), I had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here). The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics. I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “The Rights of Grandparents and Other Relatives.”

Thanks!

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Grandparents’ (and other relatives) rights to have custody of children is governed by 23 Pa.C.S.A. §5324 which states as follows:

The following individuals may file an action under this chapter for any form of physical custody or legal custody:

(1) A parent of the child.

(2) A person who stands in loco parentis to the child.

(3) A grandparent of the child who is not in loco parentis to the child:

(i) whose relationship with the child began either with the consent of a parent of

the child or under a court order;

(ii) who assumes or is willing to assume responsibility for the child; and

(iii) when one of the following conditions is met:

(A) the child has been determined to be a dependent child under 42 Pa.C.

S.Ch. 63 (relating to juvenile matters);

(B) the child is substantially at risk due to parental abuse, neglect, drug or

alcohol abuse or incapacity; or

(C) the child has, for a period of at least 12 consecutive months, resided

with the grandparent, excluding brief temporary absences of the child from

the home, and is removed from the home by the parents, in which case the

action must be filed within six months after the removal of the child from

the home.

23 Pa.C.S.A. §5325 supplements §5324 and states the following:

In addition to situations set forth in §5324 (relating to standing for any form of physical custody or legal custody), grandparents and great-grandparents may file an action under this chapter for partial physical custody or supervised physical custody in the following situations:

(1) where the parent of the child is deceased, a parent or grandparent of the deceased parent may file an action under this section;

(2) [Unconstitutional]

(3) when the child has, for a period of at least 12 consecutive months, resided with the grandparent or great-grandparent, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, an action must be filed within six months after he removal of the child from the home.

Failure to secure standing serves to bar grandparents from pursing the custody of the child-at-issue. If they do have standing, grandparents may file for custody like a parent can, however, when litigating against a parent, the scales are always tipped heavily toward the biological parent and away from the grandparent. Of course, the best interests of the child are always paramount. When two parents are litigating against one another, the burden of proof is shared equally, however when the case is between a biological parent and a third party (e.g.: a grandparent), the burden of proof is not equally balanced. In this case, the biological parent has a prima facie right to custody which can only be forfeited only if “convincing reasons” appear that the best interests of the child are better met by the third party.

As I have posted recently (see here), I had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here). The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics. I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Termination of Parental Rights.”

Thanks!

__________

The termination of a parent’s rights over his children nearly always occurs in one of two circumstances: voluntary adoption and dependency.

When termination is an issue, the court must appoint an attorney to represent the child when one or both parents contest the termination. Of course, the court is always free to appoint counsel and/or guardian ad litem for the child. A lawyer may not represent both the child and one of the parents. As far as the parents facing possible parental termination are concerned, the court may, upon petition, also appoint an attorney for one or both of them in the event he or she is unable to pay for an attorney.

There are times when parents are willing to voluntarily terminate their rights to their children, typically called relinquishment, say in the context of adoption. Another option, besides relinquishment, is signing a consent. A parent can sign a consent for their child to be adopted and not have to appear at future hearings. 23 Pa.C.S. § 2504. Upon receipt of a petition to relinquish parental rights, as mentioned above, a hearing will be scheduled, at least ten days from the filing of the petition, in order for the court to review and rule upon the petition. Relinquishment is under 23 Pa.C.S. § 2501-2502 and requires a hearing wherein a judge should make sure the parent understands the consequences of relinquishment and is fully aware of his right to trial. Usually there is a colloquy by the judge or by the parent’s attorney to establish their understanding.

It should be noted that if there is a putative father, which is to say a man who has not been formally legally established to be a child’s father, he may have his rights terminated if he had not filed an acknowledgment of paternity or a claim for paternity and fails to appear at the termination hearing.

Perhaps one of the most compassionate sections of the applicable law toward the parents subject termination is the fact that the court has the obligation to inquire into whether those parents have received counseling. If not, the court can refer him or her to a qualified counselor. In the alternative, a parent subject to termination may apply for a referral to counseling as well. To help facilitate counseling, the state has established a counseling fund pursuant to 23 Pa.C.S.A. §2505(e) to help those who are not in a financial position to afford counseling on their own.

Of course, termination of parental rights is a critical element of adoption and dependency. Termination in the context of adoption is pursuant to 23 Pa.C.S.A. §2511. In order to petition to terminate in this context, the parent must (1) evidence a “settled purpose of relinquishing [a] parental claim” over a child or fail to perform parental duties for a period of six (6) months immediately prior to filing to terminate; or, (2) demonstrate repeated abuse or neglect or continued incapacity; or, (3) the parent is the presumptive but not natural father of the child; or, (4) the child is in the custody of an agency and the parent is unknown (and does not claim the child within three months after being found); or, (5) the child has been removed from the care of the parent by court or voluntary agreement for a period of at least six months and the circumstances which led to the removal still persist with no reasonable expectation to improve; or, (6) a newborn child where the parent knows (or should know) of the child but takes no action to be a parent (e.g.: reside with the child or marry the other parent) for a four month period; or, (7) the parent is a father of a child conceived through rape; or, (8) the parent has been convicted of a serious crime (as listed in the statute); or, (9) the parent has committed sexual abuse or is a registered sex offender,

If a parent exhibits no sign of interest in the child over an extended period – typically about six months – he will be at risk of termination. The Court has made it clear that a child is not an “unwanted toy” for a parent to pick up and play with at his whim and set it down again when tired of it. Relatedly, being the fun and occasional playmate is not the same as being an involved parent. Additionally, parental involvement is more than merely paying support or paying for various expenses. A parent is more than a benefactor. Interestingly, absence due to incarceration does not necessarily provide sufficient grounds for termination. Of course, the six month interval is not mechanically applied. The Court is to fully analyze the underlying matter to determine why there has been such extended absence, and to view the totality of circumstances before ordering termination.

Those who may petition to terminate another person’s parental rights are limited to (1) either parent; (2) an agency; (3) the person who has custody and standing as in loco parentis and has filed a report of intention to adopt; and/or (4) a guardian ad litem of a dependent child.

The party seeking termination must prove by clear and convincing evidence that the parent’s conduct satisfies the grounds listed in 23 Pa.C.S.A. §2511. If the aforesaid evidentiary standard is met, then the court may consider whether the termination is for the best interests of the child. As with virtually any other issue regarding the custody or placement of children, the best interests of the child are paramount. The court is to give primary consideration to the developmental, physical, and/or emotional needs and welfare of the child. See 23 Pa.C.S.A. § 2511(b) The statute is clear that issues surrounding environmental factors will not be the sole basis of termination. Environmental factors include housing, furnishings, income, clothing, medical care, and the like if they are beyond the control of the parent. Finally, if a parent attempts to remedy the issues and conditions provoking the termination petition after the petition is filed, the court will likely not consider them. See 23 Pa.C.S.A. §2511(b)

After the filing of a petition for termination, a hearing is held with at least ten days’ notice to the parents, putative father, and parent of a minor parent who has not been terminated. Following termination, the terminated parent may not object to any adoption proceeding for the child. Terminated parents nearly always have the right to file updates of his or her personal medical history information after termination.

As I have posted recently (see here), I had the great opportunity to lead (perhaps “teach”) a continuing legal education seminar hosted by the National Business Institute (a.k.a. NBI, see here). The subject was “Family Law From A to Z” and I had opportunity to speak on two main topics in particular: Custody and Ethics. I was joined by four other capable attorneys who each had their own topics to present.

Although NBI published the materials, I retain the ownership of the portions I wrote, which I will post here in this blog.

Copied below are the materials I wrote for the section entitled “Questions of Paternity.”

Thanks!

__________

III. CHILD CUSTODY AND VISITATION RIGHTS

C. Questions of Paternity

Historically the law regarding children born out-of-wedlock (i.e.: so-called “bastards”) was different than that regarding a child born into a family, which disadvantaged and stigmatized them. Now, however, by contrast, parents, no matter the circumstances of the birth of their children, all have equal rights under the law. The establishment of paternity entitles the person who is awarded it to custodial rights over the child-at-issue.

There are six ways in which paternity can be established: (1) voluntary acknowledgment; (2) stipulation to be bound to the results of a genetic test; (3) estoppel; (4) presumption; (5) hearing/trial; and, (6) failing to appear for testing, trial, and/or hearing for paternity. An action to determine paternity for a child born out of wedlock may be commenced at any time until the child turns eighteen years old.

A child born into a marriage is presumed to be the child of the father in that marriage and this presumption is typically only rebutted through showing impotence or the impossibility of sexual access. 23 Pa.C.S.A. §5104(g). In situations when a child is born out-of-wedlock, paternity may be determined by (1) the parents eventually marrying and/or (2) through clear and convincing evidence that the purported father has provided financial support and/or received the child into his home and has held the child out as his, and/or (3) clear and convincing evidence of actual paternity (e.g. positive paternity testing which is prima facia evidence of paternity). The presumption of paternity in the context of marriage is for the purpose of preserving stable family units for the children within them.

Of course, a putative father may also acknowledge paternity in a verified writing. This is often done at a child support conference/hearing where a man submits to a support order for a child he acknowledges as his own. If a man appears at a support hearing but refuses to acknowledge paternity, the court is to enter an order directing the parties to appear for genetic testing. Perhaps obviously, the mother is, by statute (23 Pa.C.S.A. §2513(c)) considered to be a competent witness to paternity. The putative father may contest the results of the genetic testing, but, to do so, he must marshal clear and convincing evidence that the test is somehow not reliable. If the test itself is not conclusive (i.e.: results in less than 99% probability), the court will schedule the matter for trial.

Estoppel occurs when a man holds a child out as his own regardless of biological relationship. It could also occur when a woman holds him out as the father despite biological relationship. Estoppel, basically, is the prohibition of denying paternity after holding a child out as one’s own, regardless of his relation to the child. Estoppel, at its essence, is designed to prevent putative fathers from denying parentage at some point in the future. “Hold out as his own” is typically evidenced by spending time with the child, living with the child, the child bearing the man’s name, the child calling him “dad,” the man representing to others he is the father, and so on. In situations such as this, this man will be estopped from denying paternity and genetic testing may not be admitted to contradict paternity. Relatedly, if a man other than the apparent father denies paternity, a mother may not pursue genetic testing on the alleged father due to the presence of the apparent father. Again, similar to the presumption from a marriage, it is believed permanency is in the best interests of the child. Furthermore, estoppel is most often applied in situations where a man has held himself out as a child’s father only to try and deny paternity when/if child support is ordered at some point in the future. As estoppel often relies upon timing (e.g.: failing to move immediately for genetic testing upon learning of a claim of paternity) the Pennsylvania Superior Court observed that the law is starting to soften on its application and stated “paternity by estoppel continues to pertain in Pennsylvania, but it will apply only where it can be shown, on a developed record, that it is in the best interests of the involved child.” T.E.D. v. C.A.B. v. P.D.K., Jr., 74 A.3d 170 (Pa.Super.2013).

There are times, of course, when more than one man claims to be the father of a child. The Pennsylvania Supreme Court has ruled on who may request a paternity test and/or challenge paternity and/or be denied the right to seek paternity. In the matter of Brinkley v. King, 549 Pa. 241 (1997) the Supreme Court, through a plurality opinion, laid out the required analysis to determine the paternity of a child conceived or born during a marriage. First, one must determine whether the marriage presumption of paternity applies and, if so, whether it has been rebutted. Second, if the presumption has been rebutted, one must then determine if estoppel applies to bar either a plaintiff from making a claim or a defendant from denying paternity.

The underlying principle of the presumption is the preservation of marriage, in other words, the protection of an intact family. If the presumption does not apply one must then determine whether the man seeking paternity is estopped from attempting to strip another man’s claim to paternity of a child born during marriage and/or held out as his own. It should be noted that one’s delay or inactivity in seeking paternity may bar him from doing so. Again, best interests – in this instance the stability of a child’s life – is paramount.

Of course, there are times when fraud is claimed regarding paternity and, if demonstrated, the argument of estoppel could be precluded. In order to successfully argue fraud, a party must demonstrate: (1) a misrepresentation; (2) a fraudulent utterance; (3) intention to induce action by the recipient; (4) justifiable reliance on the utterance; and, (5) damages.